Par. 5. Sections 1.32-1 and 1.32-4 are added to read as follows:
(a) In general. Section 32 of the Internal Revenue Code (Code) allows eligible individuals a credit of an amount determined under section 32 (section 32 credit) against the tax imposed by subtitle A of the Code for the taxable year. This section applies Title IV of PRWORA with respect to the refunded portion of the section 32 credit. See 8 U.S.C. 1611(a), (c)(1).
(b) Definitions. The following definitions apply for purposes of this section:
(1) Alien. The term alien has the same meaning as provided in section 101(a) of the Immigration and Nationality Act, Public Law 82-414, 66 Stat. 163, 8 U.S.C. 1101(a)(3).
(2) Federal public benefit. The term Federal public benefit has the same meaning as provided in section 401 of PRWORA, 8 U.S.C. 1611(c).
(3) PRWORA. The term PRWORA means the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193, 110 Stat. 2105, 2260-77, as amended.
(4) Qualified alien. The term qualified alien has the same meaning as provided in section 431 of PRWORA, 8 U.S.C. 1641(b). In case of married individuals filing a joint return, if one spouse is a U.S. citizen, U.S. national, or qualified alien, then the other spouse will be treated as a qualified alien for this purpose.
(5) U.S. National. The term U.S. national has the same meaning as provided the term national of the United States in section 101(a) of the Immigration and Nationality Act, Public Law 82-414, 66 Stat. 163, 8 U.S.C. 1101(a)(22).
(c) Refunded portion of the section 32 credit— (1) In general. The refunded portion of the section 32 credit is the portion of the section 32 credit that exceeds the tax imposed on the taxpayer by subtitle A of the Code (reduced by credits allowable under subparts A, B, D, and G of part IV of subchapter A of chapter 1 of the Code).
(2) Multiple individual refundable income tax credits claimed. In the event the taxpayer has also claimed a refundable credit under sections 23, 24, or 25A of the Code, or another refundable income tax credit for which the refunded portion is specified by the Secretary in regulations as subject to PRWORA, the taxpayer must first sum all such refundable credits claimed, and then calculate the portion of the sum of these credits that exceeds the tax imposed on the taxpayer by subtitle A of the Code (reduced by credits allowable under subparts A, B, D, and G of part IV of subchapter A of chapter 1 of the Code). The refunded portion of the section 32 credit is included within this portion.
(d) Federal public benefit as applied to section 32. The refunded portion of the taxpayer's section 32 credit is a Federal public benefit. A taxpayer who satisfies the requirements of section 32 is eligible to receive the refunded portion of the section 32 credit, have it credited against the taxpayer's unpaid tax liabilities, or have it offset against specified non-tax liabilities, only if the taxpayer is a U.S. citizen, U.S. national, or qualified alien and so declares under penalty of perjury (on the appropriate Federal income tax return, amended tax return, or schedule as required by the IRS).
(e) Determination for eligibility of the refunded portion of section 32 credit. For purposes of receiving the refunded portion of the section 32 credit, having it credited against the taxpayer's unpaid tax liabilities, or having it offset against specified non-tax liabilities, a taxpayer's status as a U.S. citizen, U.S. national, or qualified alien is determined on the date the taxpayer files the taxpayer's return for the taxable year that first claims the section 32 credit (without regard to whether the return is deemed by the Code to be filed on another date).
(f) Examples. The following examples illustrate the rules of this section. In each example below, the taxpayer meets the requirements under the Code to claim the section 32 credit for the taxable year:
(1) Example 1: Timely-filed return claiming the tax credit. The due date of taxpayer A's return is April 15. A files A's return for the taxable year on April 15, claiming the section 32 credit. On April 15, A is a U.S. citizen, U.S. national, or qualified alien. Because A was a U.S. citizen, U.S. national, or qualified alien on the date of A files A's return claiming the section 32 credit for the taxable year, A is eligible to receive the refunded portion of the section 32 credit, have it credited against A's unpaid tax liabilities, or have it offset against A's specified non-tax liabilities.
(2) Example 2: Claiming the tax credit on an early return. The due date of taxpayer B's return is April 15. B files B's return on February 1, claiming the section 32 credit. On February 1, B is a U.S. citizen, U.S. national, or qualified alien. Accordingly, B is eligible to receive the refunded portion of the section 32 credit, have it credited against B's unpaid tax liabilities, or have it offset against B's specified non-tax liabilities.
(3) Example 3: Claiming the tax credit on a late return. The due date of taxpayer C's return is April 15. C does not file Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return, for the taxable year. On November 1, within the period of limitations prescribed in section 6511 of the Code on filing a claim for refund, C files C's return claiming the section 32 credit. On November 1, C is a U.S. citizen, U.S. national, or qualified alien. Accordingly, C is eligible to receive the refunded portion of the section 32 credit, to have it credited against C's unpaid tax liabilities, or have it offset against C's specified non-tax liabilities.
(4) Example 4: Claiming the tax credit on an amended return after a status change. The due date of taxpayer D's return is April 15. D files D's return for the taxable year on April 15, claiming the section 32 credit. However, on April 15, D is not U.S. citizen, U.S. national, or a qualified alien. Accordingly, D is not eligible to receive the refunded portion of the section 32 credit, or to have it credited against D's unpaid tax liabilities or have it offset against D's specified non-tax liabilities. On December 1, D becomes a U.S. citizen, U.S. national, or qualified alien. On December 15, within the period of limitation prescribed in section 6511 on filing a claim for refund, D files an amended return for the taxable year, updating D's status under PRWORA. Although D is a U.S. citizen, U.S. national, or qualified alien on December 15, D was not a U.S. citizen, U.S. national, or qualified alien when D first claimed the section 32 credit, so D is not eligible to receive the refunded portion of the section 32 credit.
(5) Example 5: Claiming the tax credit for the first time on an amended return after a status change. Same facts as paragraph (f)(4) of this section ( Example 4 ), except that D did not initially claim the section 32 credit when D filed on April 15 and rather claimed this credit for the first time on an amended return filed on December 15. Since D is a U.S. citizen, U.S. national, or qualified alien on December 15 when D first claimed the section 32 credit, D is eligible to receive the refunded portion of the section 32 credit.
(6) Example 6: Determining the Federal Public Benefit when the taxpayer claims the section 32 credit and no other refundable tax credits. Taxpayer E meets the section 32 requirements for a $2,272 earned income credit. E claims no other individual refundable tax credits. E's subtitle A tax liability, reduced by the credits allowed under subparts A, B, D, and G of part IV of subchapter A of chapter 1 of the Code, is $1,451. Therefore, the refunded portion of the section 32 credit is $821. This amount, which is the Federal public benefit, is calculated by subtracting $1,451 from $2,272. If E is an alien who is not a qualified alien, E is not eligible to receive the Federal public benefit of $821 as a refund, have it credited against the taxpayer's unpaid tax liabilities, or have it offset against specified non-tax liabilities.
(7) Example 7: Determining the Federal public benefit when the taxpayer claims multiple individual refundable income tax credits. Taxpayer F meets the section 32 requirements for a $2,272 earned income credit and the section 24 requirements for a $2,200 child tax credit. The refundable amount of the section 24 credit, determined under section 24(d), is $1,455. F claims no other individual refundable tax credits. F's subtitle A tax liability, reduced by the credits allowed under subparts A, B, D, and G of part IV of subchapter A of chapter 1 of the Code, is $706. The sum of F's refundable tax credits claimed under subpart C of part IV of subchapter A of chapter 1 of the Code and subject to PRWORA is $3,727. The excess of $3,727 over $706, which is $3,021, includes the refunded portion of both the section 32 credit and the section 24 credit and is the Federal public benefit. If F is an alien who is not a qualified alien, F is not eligible to receive the Federal public benefit of $3,021 as a refund, have it credited against the taxpayer's unpaid tax liabilities, or have it offset against specified non-tax liabilities.
(8) Example 8: Determining the Federal Public Benefit when the taxpayer claims an individual refundable income tax credit subject to PRWORA and a refundable income tax credit not subject to PRWORA. Taxpayer G meets the section 32 requirements for a $2,272 earned income credit. G also has $250 of tax withheld from wages during the taxable year and is allowed, under section 31, a credit against subtitle A tax equal to that amount. The section 31 credit is an allowable refundable tax credit under subpart C of part IV of subchapter A of chapter 1 of the Code and is not subject to PRWORA. G claims no other individual refundable tax credits. G's subtitle A tax liability, reduced by the credits allowed under subparts A, B, D, and G of part IV of subchapter A of chapter 1 of the Code, is $1,451. Therefore, the refunded portion of the section 32 credit is $821. This amount, which is the Federal public benefit, is calculated by subtracting $1,451 from $2,272. The $250 withholding credit is not included in the calculation of a Federal public benefit and can be received as a refund, credited against the taxpayer's unpaid tax liabilities, or offset against specified non-tax liabilities. If G is an alien who is not a qualified alien, G is not eligible to receive the Federal public benefit of $821 as a refund, have it credited against the taxpayer's unpaid tax liabilities, or have it offset against specified non-tax liabilities.
(g) Applicability date. This section applies to taxable years ending on or after [date of publication of final regulations in the Federal Register ].